Case name: Ashcroft v. ACLU II

Background: After the Supreme Court in Reno v. ACLU (1997) found the Communications Decency Act unconstitutional, Congress tried again to find a way to restrict minor's access to sexually explicit material on the Internet. Its second attempt, the Child Online Protection Act — or COPA — makes it a crime, knowingly and for commercial purposes, to make any material that is "harmful to minors" accessible to minors. "Harmful to minors" was defined as anything that is either obscene or by community standards appeals to prurient interests, depicts sex acts or genitals, or lacks artistic merit, among other definitions. Before it took effect, the law was found unconstitutional at both the district court and appeals court levels and was enjoined from being enforced. In 2002, the Supreme Court examined the law and returned it to the appeals court for further findings on whether the injunction was justified. In its 2002 ruling, Ashcroft v. ACLU, the Supreme Court said the use of the "community standards" rule in the law was not overbroad under the First Amendment. In its second look at the law, the 3rd U.S. Circuit Court of Appeals again found the law was not narrowly tailored and was overbroad and therefore unconstitutional.

Ruling: The Supreme Court affirmed the 3rd Circuit's ruling to the extent of upholding the injunction against enforcement of COPA. That injunction was imposed by the district court because of the likelihood that the law violates the First Amendment. The justices agreed that because there are "a number of plausible, less restrictive alternatives" to the restrictions encompassed in COPA, the government had not met its burden under the First Amendment to justify the law. The case is remanded to the district court for trial so that parties may supplement the record on new filtering mechanisms and other recent innovations that would restrict minors' access at the receiving computer rather than at the source.

Verbatim: "Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid ... and that the Government bear the burden of showing their constitutionality... . This is true even when Congress twice has attempted to find a constitutional means to restrict, and punish, the speech in question."

Lineup: Justice Anthony Kennedy wrote the majority opinion, and was joined by Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg. Justice Antonin Scalia dissented, as did Stephen Breyer, Sandra Day O'Connor and Chief Justice William Rehnquist.

First Amendment impact: Critics of the COPA statute are relieved that while the further proceedings ordered by the Court take place in Philadelphia, the injunction against its enforcement remains in place. And Kennedy's language warning of the dangers of content-based censorship will be helpful in this and future battles. But the fact that the Supreme Court is sending the case back to lower courts for a second time — probably resulting in a third high court decision a year or more from now — is likely to be disheartening to First Amendment advocates who have embraced the lower court rulings. Internet innovations of the type that Kennedy wants the district court to examine are likely to continue apace, always making court rulings prone to obsolescence, and making it possible that even the third round might not be the final one.